The Ecphorizer

The Hazards of Duke
Gareth Penn

Issue #49 (September 1985)

The kids had told me about the wreck. Mary Ann, my ex, had been run into at high speed by  idiot who wasn't looking where he was going and her car had been totaled. They had told me that she was in the market for a used one to replace it. It was her [quoteright]turn to transport the

If one party acts crazy, the other must follow suit ...

kids this weekend, and I wasn't mentally prepared to see her drive up in a spandy-new car with the dealer's advertisements still stuck in the license-plate holders. There must have been something in my expression. She pulled into the driveway, set the handbrake, opened the door, and got out. She didn't say hello or any of the other normal niceties that attend a meeting of people who used to be intimate. Her face had panic written all over it. Her first words to me were, at the top of her lungs, "IT'S NOT MINE!"

The above incident is typical of the post-traumatic stress syndrome which always follows nasty divorces. Excuse me, I should have said "dissolutions," because in enlightened California people don't get divorced, they get dissolved. Some years back, a governor named Reagan signed into law a bill which was supposed to take all the nastiness out of divorce. Grounds for divorce (I mean dissolution) were simplified to incurable insanity and irreconcilable differences. You weren't supposed to have to hire a private eye to get candid photos of your mate coming out of a the motel with a "respondent." It was supposed to make it easier for former spouses to conduct their business after dissolution, to ease the pressures of hostility on the children, and to lighten court calendars. In order to expunge every element of antagonism from the proceedings, we in California do not file for dissolution vs. anybody. In California, the court calendar says "Kramer and Kramer."

Of course, it is a pious fraud. Lightening the court calendar also means lightening the income of attorneys, of whom there are so many on the market now that economic pressures are forcing them to be  more rapacious than usual. My dissolution, the parties to which were mature adults with postgraduate degrees and a higher than average intelligence quotient, took two and a half years to resolve, and resulted in legal fees of roughly $18,000. It goes without saying that this money could just as well have gone to the benefit of the children (which is what the courts and our legal systems are supposed to be primarily concerned with), but it got diverted into the pockets of lawyers instead.

We even fought over the opera tickets. I will spare you all the gory details, but as a result of lawyerly intervention, this issue wound up in court. The court's solution pleased nobody (except the lawyers, who were getting paid for being there); and as it turned out, a solution could easily have been had, free of cost, courtesy of the San Francisco Opera Company, which is accustomed to dealing with disputes of this nature. Those of you who are contemplating dissolution (or divorce, if you live in one of the other 49 states) might well consider using another institution of society (any other, if at all possible) to resolve post-marital disputes rather than taking them to court.

For one thing, life is too short that you should waste it getting completely absorbed in conflict. And believe me, you will. There is nothing more fascinating than being involved in litigation. It occupies your mind every waking minute. My dissolution had everything; it was decked out in the full panoply of the law: Depositions, interrogatories, expert witnesses, character witnesses, subpoenas. The only thing worse than being involved in litigation is living with somebody who is also involved. The air is continually charged with legal electricity, even as it is filled with legal ennui. Once, on a dark and stormy night, there came a knock at the door. Diane opened, and she got a subpoena shoved into her hand. It wasn't even in her litigation: it was in mine. After a while, of course, these moments of high drama give way to kitchen sink dialogue:

"Where did you put my interrogatories?"

"I didn't put them anywhere."

"Well, then, where the hell are they?"

"The last time I saw them they were with mine, on top of the refrigerator."

Another excellent reason for avoiding the legal process is that the courts don't give anybody what they want. Don't take my word for it, ask General Westmoreland and CBS. Warren Burger complains a lot, and rightly so, about the American legal system and American lawyers, but the one thing he won't tell you is the courts' most closely-held secret: litigation is the oldest continuously operated crapshoot in the world. There are three reasons why this is so, and particularly in dissolution cases:

  1. To a judge, you are just somebody who walked into court off the street. Whatever decision the court makes will be based entirely on what the court hears in the next 25 minutes. If your lawyer's perception of your case differs from yours to the slightest degree, the judge will not hear what you want him (or her) to hear.
  2. Legal guidelines are, by a layman's standards, hazy. In dissolutions, they are extraordinarily hazy. For instance, in enlightened California, the court is supposed to order "joint legal custody" to both parents. Unfortunately, the Legislature did not let the courts know exactly what "joint legal custody" is. The definition is, to this day, still up for grabs.
  3. In family law, judges have incredible discretionary powers. If you feel that you have been steamrollered by the court, you can appeal on the grounds of abuse of discretion. Needless to say, your appeal will cost you twice as much as the original proceeding did, and by the time you get a reversal, the original order will probably be moot, anyway.

A landmark case in California law involved a woman who got an order reversed on appeal. Her name was Duke, and so legal jargon surrounding dissolutions these days is larded with "Duke this" and "Duke that." One of the fringe benefits of being a litigant in a landmark case is that you get your surname underlined or set in italics in the print media. (I feel a bit cheated, having spent enough money to become a landmark case myself. Still and all, Penn and Penn did achieve a peculiar distinction in the annals of jurisprudence. It is, as far as I know, the only case since "Who Stole the Tarts?" in which nonsense verse was entered in evidence. The background is that I had sent my daughter, Amanda, a letter in which I quoted at length from a nonsense poem by Walt Kelly, Songs of the Pogo. I think it was our fourth or fifth session in court over a period of seven months when this letter was put in evidence as proof of my unfitness to be a father to my children.)

Mr. Duke took home a lot of money. Mrs. Duke stayed home to keep house and raise the kids. The most money she made during the marriage was about $50 a month, which she earned by selling cosmetics to friends and neighbors out of her living room. When the Dukes split up, the family home was ordered sold, so that Mr. Duke could recover his share of the community property. Mrs. Duke appealed, saying that she would be damaged if she were not given a period of time in which to become self-supporting. The original order was overturned, and the Dukes were translated into the realm of italics.

What Duke did was to establish the principle that where a custodial parent can establish that immediate liquidation of the family home would impose an economic burden or even psychological damage, the court can order a deferral of sale. Evidentiary standards are, as in all family law cases, very elastic.

You may have understood me to say that legal justice is imperfect. But poetic justice is not. You won't believe what I am going to tell you, but you had better, because if you ask your lawyer if am pulling your leg, you will get charged at least $50. The counter to Duke in California jurisprudence is a judicial rule called the King Rule. What next, Baron?

The King Rule is named after former Judge King, who sat on the Supreme Court bench in San Francisco. King worked out a mathematical rule for determining at what point a non-custodial parent's foregoing of the use of his (or her) capital exceeded a reasonable contribution to the economic well-being of the children and of the custodial parent, insofar as she (or he) was entitled to spousal support. The way King figured it, the break-even point is where support payments ordered by the court equal one-third of the fair monthly rental value of the family home. If the court orders substantially less, it is because the custodial parent is not in need of economic underpinning from the non-custodial parent, and the combined effect of not having one's capital and having to pay child support in addition exceeds one's reasonable financial obligation. What the King Rule envisions is that below that point, the custodial parent must, in effect, pay rent to the non-custodial parent. As you can well imagine, since this rent must be paid in a lump sum out of the proceeds of sale after, in some cases, years of deferral, the financial effects can be disastrous.

The legal landscape between the two landmarks, King and Duke, is uncharted. It abounds in hazards. It is ideally suited, in other words, to keep the legal profession in money for the foreseeable future. It isn't worth the risk to either party to try to exploit either of these principles; they have a way of rebounding on you. Litigation is like nuclear warfare: one side alone cannot exercise restraint. If one party acts crazy, the other must follow suit or be destroyed. And as with nuclear warfare, nobody can really win. Technical victories have a way of turning into practical defeats.

I am not licensed to dispense legal advice, and so I won't. But I will part with a bit of dearly-bought wisdon, for free. If you have the itch to litigate, don't. Do everything you can to seek alternative solutions, whether it be family friends or professional arbitrators. Whatever you do, stay out of court. 

GARETH PENN, our most perennial contributor, recently joined the committee that manages the annual Mensa RG at Asilomar. He will be in charge of writing and publicity, as well as decrypting clues and tracking down murderers.

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